Month: October 2018
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The last decade has seen a significant alteration in Senate tradition and procedure – a change in the cloture process to enable a simple majority to end debate (and thereby force a vote) on all nominations before the Senate. However, Senate Rule XXII, which provides for cloture, has not been formally amended – instead, this has come about through a remarkable maneuver to shift Senate precedent, which has become colloquially known as “nuclear option.”

To understand the “nuclear option” and the process by which it was undertaken, one must be familiar with the concept of Senate rules and procedure of precedent. Under Article One, Section 5 of the United States Constitution, the Senate is empowered to determine the rules of its procedure and proceedings. These rules may be formally changed or amended at the beginning of a new Congress, or “altered” through the establishment of new precedent – by which a majority of Senators decide, through their vote, to overturn a ruling of the Senate chair regarding what had before been established procedure. A precedent, once set, supersedes the rule it affects. As the Senate is a “continuing body,” rules and precedents stand through successive Congresses until altered.

One of the Senate’s rules, Senate Rule XXII, provides for a process – “cloture” – by which the Senate can vote to limit further consideration of a pending question and proceed to a vote. Why the “need” for cloture? Since the early 19th century, the Senate has traditionally not restricted the total time allowed for Senators to debate. Senators throughout the 19th century began taking advantage of this by giving lengthy speeches so as to prevent particular measures they opposed from being voted on – a process called “filibustering.” Senate Rule XXII, originally adopted in 1917 as a procedure only applicable to legislation and requiring a two-thirds majority vote, was established so as to allow a supermajority of Senators in support of a measure to advance it to a vote – circumventing the filibuster.

The rule was amended in 1949 to also apply to nominations and again in 1975 to clarify that a three-fifths vote of the Senate (absent any vacancies) was required. Even still, Rule XXII protected the rights and privileges of Senators to a “defense,” even in the minority. Even though a bill may have majority support, a minority of 41 or more Senators can vote against a cloture attempt, endlessly debate, and effectively defeat the bill by preventing a final vote.

They can do the same on nominations. It was under these circumstances that, in 2013, Senate Majority Leader Reid decided to employ the “nuclear option” for the first time. Whether it be Republican “obstructionism” or their “right to minority privilege,” the Senate minority was blocking the confirmation of Executive Branch – particularly judicial – nominations being made by the Obama Administration. However, the Democrats lacked the supermajority vote needed to formally lower the cloture vote threshold.

Formally changing Rule XXII to eliminate, or lower, the 60-vote threshold is made challenging by the contents of the rule itself. Section 2 of Rule XXII states that, to end debate on any proposal “to amend the Senate rules… the necessary vote shall be two-thirds of the Senators present and voting.” In effect, this means that the 60-vote threshold for cloture under Rule XXII cannot be formally modified without the approval of, typically, 67 Senators – which the Democratic majority lacked in 2013.

However, Majority Leader Reid had a method available – the “nuclear option” – to lower the cloture vote threshold to get a final vote on the nominations. As explained above and described below, he did so by changing precedent on Rule XXII – essentially, having the Senate reinterpret Rule XXII as needed to enable cloture with the votes he could secure. Senator Mitch McConnell did the very same in 2017, to secure passage of President Trump’s Supreme Court nomination.

On October 31, 2013, the Senate voted to not invoke cloture on the nomination of Patricia Ann Millett to be United States Circuit Judge for the D.C. Circuit; Majority Leader Reid then successfully entered a motion to reconsider. Nearly a month later, on November 21, the Senate took up and agreed to that reconsideration. Senator Reid raised a point of order that a vote on cloture under rule XXII for all nominations other than for the Supreme Court is by majority vote. The chair ruled against the point of order, noting it was inconsistent with the required three-fifths vote the rule entailed.

Senator Reid appealed the ruling of the chair, who then put the ruling to the Senate for a vote. The Senate voted in favor, 52 to 48, of overturning the chair’s ruling. Minority Leader McConnell then raised a point of order that Rule XXII requires a three-fifths threshold for invoking cloture on a nomination; the chair ruled against this point of order, based on the precedent that Senator Reid just set. The Senate sustained this ruling in favor of the new precedent in another vote of 52 to 48. Thereafter, the Senate re-voted on the cloture motion, agreeing to it on a vote of 55 to 48 – enough under the new numerical majority precedent.

On April 6, 2017, now-Majority Leader McConnell followed a similar process to lower the vote threshold on cloture for a Supreme Court nomination. That day – two after he filed cloture on the committee-reported nomination of Neil Gorsuch to be an Associate Justice – the Senate voted to invoke cloture on the nomination. The vote was 55 to 45 – as the relevant threshold was still three-fifths of the Senate (60), the vote failed.

Senator McConnell then moved to reconsider and followed with a point of order that the 2013 precedent applied a majority vote cloture threshold to all nominations. The presiding officer ruled that the set precedent did not apply to Supreme Court nominations, which are rather considered “under plain language of rule XXII.” Senator McConnell, in the act to reinterpret rule XXII, appealed the ruling of the chair.

The presiding officer put the appeal of the ruling to the Senate for a vote. On the question of upholding the chair’s ruling, the Senate voted 48 to 52 – overturning the ruling, which thereby established new precedent. The Senate then “re-voted” on the cloture motion, as it had agreed to reconsider, with the vote being 54 to 45 – a successful vote, under that new precedent. The following day, the Senate confirmed Gorsuch’s nomination 54 to 45.

Because of the precedent set by these two reinterpretations of Rule XXII, the Senate can now invoke cloture on any nomination by a simple majority vote. With this, the “right,” “privilege,” or “power” of defense for the Senate minority has been eroded – if not outright eliminated – on matters of nominations… unless precedent (or the rule itself) is changed again. The Senate’s decision to go “nuclear,” first in 2013 and again in 2017, remains topical today – its effect seen most recently in the contentious yet successful invocation of cloture and ultimate confirmation of Brett Kavanaugh to the Supreme Court.

In recent years, a process involving the Senate’s “amendment tree” has been increasingly wielded by Senate leadership as a means to limit opportunity for Senators to offer amendments on measures on the Senate floor. For many observers of the Senate’s legislative process, the act of “filling” the amendment tree is a controversial – yet powerful – tactic by which the Majority Leader can control the content of bills and the legislative process.

The Senate is unique in often offering its members significant opportunity and flexibility to amend a measure on the floor. Generally, a measure being considered on the floor is open to amendment in two degrees – amendments to the text of the measure (an amendment in the first degree), and an amendment to that amendment (an amendment in the second degree). The amendments that can be in order at any one time depend on the form of the first amendment, and then the type and degree of subsequent amendments. The series of these amendments and “amendments to amendments” are the “limbs” on the amendment “tree.”

The amendment tree is “filled” when all amendments permitted by orders of precedence have been offered and are simultaneously pending. By precedent set by the Senate, once the “tree” is filled, further amendments cannot be offered until those which are pending are voted on.

How and why can a Majority Leader “fill” the amendment tree? Technically, any Senator – or group of Senators, should they be working together – may offer amendments in such a way to fill the tree. After all, Senate Rule XIX stipulates that the Senate’s presiding officer recognize the “Senator who shall first address him” – as such, Senators may offer amendments in the order that they obtain recognition, which in turn is the order they address the chair. It is conceivable that a single determined Senator could monopolize the amendment-offering process. However, as has become tradition through practice throughout much of the 20th century, priority of recognition is afforded to the Majority Leader if they seek recognition simultaneous to other Senators.

Because of this, a Majority Leader is guaranteed the ability and opportunity to fill an amendment tree if they repeatedly get recognized in turn to offer amendments to a pending measure. As a practical matter, because of the custom of granting the Majority Leader (or their designee) priority recognition, no other Senator can fill the amendment tree. To fill the tree, the Majority Leader offers first degree and second degree amendments until the amendment tree is full and their amendments must be voted on. Before that vote, however, the Majority Leader may file cloture pursuant to Rule XXII. If cloture is agreed upon, it locks the amendments in place, closes further debate on them, and forces non-germane amendments away.

There are several reasons why a majority leader might pursue the strategy of “filling the amendment tree,” to include:

Expediting Senate consideration of legislation by limiting the total number of amendments offered;

Instituting a measure of control over the sequence or subject of floor amendments offered;

Gaining advantage in negotiations of a unanimous consent request for further consideration of a measure;

Protecting vulnerable members of the same party from having to vote on controversial or politically challenging amendments.

The tactic has significant implications for Senate deliberations. First, it increases the power of the Committees and Committee leadership in deciding the content and scope of a piece of legislation. It can moderate Senators from the process of filing amendments in protest, or attaching “poison pills” to a measure in an attempt to defeat it. For Senators who wish to offer amendments in good faith, they must secure the buy-in of the Majority Leader, lest they “fill the tree” before the amendment may be made. This entails significant negotiation and back-room agreement between leadership and a Senator for the Senator to substantively contribute in the process of Senate floor action.

Yet, conversely, the Majority Leader must assess risk in deciding to fill the amendment tree – as Senators may reject a bill if they feel they have not been given an adequate opportunity, as is their Senatorial prerogative, to offer amendment to a measure.

There have been both successful and unsuccessful attempts to circumvent a “filled” amendment tree. In 2009, Senator DeMint of South Carolina successfully suspended the provisions of rule XXII, including germaneness requirements, so that his amendment could be proposed and considered after Majority Leader Reid had filled the amendment tree and filed cloture. This move became routine procedure in the Senate until October 2011.

In October 2011, Senate Minority Leader Mitch McConnell attempted to use DeMint’s procedure to offer the “American Jobs Act” as an amendment to the Currency Exchange Rate Oversight Reform Bill – on which Senator Reid had filled the amendment tree. Senator Reid, however, raised a point of order against motions to suspend the rules after cloture is invoked. To do so, he called up Senator Coburn’s suspension of the rules amendment and then made a point of order that such suspension was a “dilatory motion” under Rule XXII – the rule states that “no dilatory motions… shall be in order.”

Senator Begich of Arkansas, presiding in the chair, held that the point of order was no sustained. Senator Reid appealed the ruling. The vote on upholding the ruling went to the Senate, which voted 48 to 51 – thereby setting a new precedent that motions to suspend the rules are not in order after cloture, pursuant to Rule XXII. Thus, Senator McConnell’s attempt to circumvent the filled amendment tree was unsuccessful – and any further attempts by Senators to use the suspension of the rules for such a purpose will fail, as well.